Alexander Joseph Johnstone v Fawcett’s Garage (Newbury) Limited

In mesothelioma claims, the claimant must prove that the defendant’s breach caused a material increase in the risk of contracting the disease. The special causation rule does not replace the ordinary requirements of evidence and proof, and mere exposure followed by mesothelioma does not automatically satisfy the test.

The court may consider a broad range of factual, occupational-hygiene, epidemiological and medical evidence. Where precise exposure figures are impossible, it should make the best reasoned approximation available on the balance of probabilities. The claim fails where the resulting increase in risk is too small to be material.

The claimant, representing the estate of Elaine Johnstone and claiming for himself and the dependants, sued her former employer after she died from pleural malignant mesothelioma. The defendant admitted unsafe asbestos-handling practices at its garage, including the use of compressed air to remove dust from brake and clutch components.

The central issue was whether the claimant had proved that the admitted breach materially increased Mrs Johnstone’s risk of developing mesothelioma. The court also considered a late application to rely on further witness evidence and an alleged adverse inference from the absence of air-monitoring records.

1. The court applied the special causation rule stated in [2002] UKHL 22 and [2011] UKSC 10. The issue was whether the admitted breach materially increased the risk of mesothelioma.
2. The special rule was not a licence to dispense with ordinary evidence and proof. Method 1, which treated exposure as broadly equivalent to increased risk and treated any non-de minimis exposure as sufficient, was not an established rule of law. Relevant expert evidence could include occupational hygiene, epidemiology and medical evidence.
3. Absolute exposure figures were unattainable. The proper approach was to make the best approximation supported by the evidence, applying reasoned conclusions and the balance of probabilities. The court preferred Mr Stear’s assessment of the mechanic’s cumulative exposure and concluded that Mrs Johnstone’s exposure was approximately 0.001 to 0.002 f/ml-y.
4. The epidemiological and medical evidence, particularly Professor Jones’s analysis, indicated that the additional lifetime risk was about 0.1% or less. That increase was not material. The fact of asbestos exposure followed by mesothelioma therefore did not establish causation.
5. The court rejected the proposed adverse inference based on the absence of air monitoring. Monitoring would not have resolved the necessary questions concerning the interpretation of the factual evidence or the reduction factors applicable to Mrs Johnstone’s exposure. The court also applied the Denton principles and refused the late evidence application.
6. The claim was dismissed. Issues of quantum did not arise.